Working Group on Licences and Technical Contracts Discusses Biopatents and Other Topics

Many changes are currently taking place in the field of licences. Experts from BIO Deutschland’s Working Group on Licences and Technical Contracts therefore held a teleconference in mid-November to discuss current topics. The agenda included the Biopatent Directive, the EU patent, and decisions by the European Patent Organisation (EPO) on the broccoli and tomato patents.

State of play

Various organisations are currently calling for a revision of the Biopatent Directive (Directive 98/44/EC). These calls recently became more frequent in the light of various rulings by the EPO on the patenting of plants and animals. This also includes the recent rulings on the tomato case by the Technical Board of Appeal. These cases fundamentally concerned the question of exceptions to patentability for “essentially biological processes in the production of animals and plants” within the meaning of Art. 53(b) EPC when a new technical step (for example, biomarker-based production) is used. There has not yet been a final ruling on the tomato case by the Technical Board of Appeal, which is dealing with this issue. Instead, following oral proceedings on 8 November, this Technical Board of Appeal has now returned this matter to the Enlarged Board of Appeal for clarification of the interpretation.

As a unitary EU patent has not yet been possible due to disagreement by Spain and Italy and the doubt expressed by the European Court of Justice on whether such a patent would comply with European treaties, the Member States and the European Commission have pushed for enhanced cooperation. In the meantime, 25 countries have embarked on enhanced cooperation with a view to creating an EU patent. Rapporteurs from the Committee on Legal Affairs of the European Parliament presented three reports on this topic at the beginning of November (EU patent system, language regime and the EU patent judicial system.)

Activities of the working group

The experts from the working group discussed trends in the EPO’s boards of appeal and decided to detail the demands by other lobbyists in a position paper, evaluate the impacts of the demands, and summarise suggested solutions and arguments for further discussions.

In addition, the working group will follow up on the reports on the EU patent system, the language regime and the EU patent judicial system in the interests of effective implementation.

BIO Deutschland members are welcome to request the minutes of the teleconference from the association’s office.